Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:
Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?
As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas
International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:
We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.
The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.
Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.
So what did Rutledge do in Hirota? Good question.
The decision itself states:
Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.
According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).
Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.
Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.